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ESPENSHADE v. PENNSYLVANIA STATE UNIV.

May 4, 1983

Donald Lee ESPENSHADE, Plaintiff,
v.
The PENNSYLVANIA STATE UNIVERSITY, et al., Defendants



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 Before us for disposition is the motion for summary judgment filed on February 23, 1983, on behalf of defendants Pennsylvania State University (PSU), John W. Oswald, and Gaye W. Sheffler (hereinafter PSU defendants or defendants). On March 7, defendants filed their brief, together with supporting affidavits and a statement of material facts. On March 22, plaintiff filed his opposing brief, after which PSU defendants filed a reply brief on April 4.

 I. The "Shammed Records" Claim

 Throughout the proceedings in the present matter, plaintiff has asserted that PSU's medical school, the Hershey Medical Center (HMC), where plaintiff was enrolled as a medical student in 1967-1968, has circulated false information regarding his academic record in three courses. It appears undisputed that plaintiff withdrew from the institution on or about April 1, 1968, and he concedes that at the time he "was aware of the possibility -- not the certainty -- the possibility that I may not have satisfactorily completed the three courses in question." Espenshade Deposition at 7. The record establishes that F or failing grades were considered by HMC as plaintiff's official grades.

 Plaintiff, however, contends that oral representations were made to him in 1968 that he could return and complete this unsatisfactory work without penalty and that he would also be readmitted as a medical student should he desire to return. Plaintiff enrolled again at HMC in 1971 but was admitted only as a non-degree student. He received grades of B in the three courses, which were not accorded credit in PSU's graduate or medical school.

 During 1972 plaintiff requested that a record of his work at HMC be sent to several places, specifically the University of Pennsylvania School of Veterinary Medicine, the Colorado State University College of Veterinary Medicine and Biomedical Sciences, and the University of California Los Alamos Scientific Laboratory. It appears that these mailings occurred in February of 1972.

 Plaintiff in his deposition conceded that this was the only occasion on which his HMC records were sent to other institutions at his request with the exception of possibly some earlier requests. Accordingly, it is difficult to understand plaintiff's assertions that he "has not been employed in the Electronic Engineering field for ten years . . . because of the shammed records." Brief of Plaintiff at 65. Nevertheless any shammed records claim appears to be time barred, and on this issue summary judgment is granted for the PSU defendants.

 Once again, as in our memorandum of April 5, 1983, in which we granted judgment on the pleadings for defendant Dauphin County Legal Service Association (DCLSA), we have examined applicable Pennsylvania statutes of limitations. It is clear that plaintiff discovered his problem with HMC records in 1972; plaintiff's brief indicates that on July 23, 1972, he received such information. Plaintiff's Brief at 67. As we noted in our prior memorandum, plaintiff's action against DCLSA was not filed until nearly a decade after his alleged injury by that organization. The alleged injury by the PSU defendants occurred even earlier. Since plaintiff's complaint against these defendants does not fall within the kinds of actions encompassed by 42 Pa.C.S.A. § 5528 (fifteen years), § 5529 (twenty years), § 5530 (twenty-one years), or § 5531 (no limitation), *fn1" the statute of limitations has run.

 The fact that plaintiff went to HMC to attempt to discuss his academic problems in the fall of 1977 or at other times does not toll the running of the statute. Instead it reinforces our determination that plaintiff knew or should have known that the grades and information related thereto which he considered inaccurate were still part of his official record at HMC. Nor is our decision altered by plaintiff's letter of March 21, 1983, to defendants' counsel requesting that official transcripts of his HMC grades be sent to himself and to three institutions. This request does not permit plaintiff to elude the bar of the statute of limitations, which ran, at the latest, approximately five years ago. If defendants provide these transcripts with the same information plaintiff contested in 1972, plaintiff has no present viable remedy. It was incumbent that he file suit in 1978 at the latest. Having failed to do so, he is forever barred from asserting his "shammed records" claim in this court or the state courts of Pennsylvania. *fn2"

 II. The Age Discrimination and Retaliation Claims

 Although the PSU defendants have argued eloquently in favor of our granting summary judgment on the age discrimination and retaliation claims, their position must be rejected. In addressing the present summary judgment motion, as with all such motions, we are required under Federal Rule of Civil Procedure 56(c) to grant summary judgment if "there is no genuine issue as ...


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